Monday, May 9, 2011

On a Certain Type of Historical Error

People often say that it’s easier to think that newspaper stories are generally accurate until you read a few stories about something about which you have personal knowledge. Sometimes, I feel the same way about history.

A case in point: In 1923, the U.S. Supreme Court invalidated a women-only minimum wage law. The Court noted that the law infringed on liberty of contract, and therefore was presumptively unconstitutional.

Justice George Sutherland, writing for the Court, proceeded to distinguish the case at bar from previous decisions upholding women-only maximum hours laws:

In the Muller case, the validity of an Oregon statute, forbidding the employment of any female in certain industries more than ten hours during anyone day was upheld. The decision proceeded upon the theory that the difference between the sexes may justify a different rule respecting hours of labor in the case of women than in the case of men. It is pointed out that these consist in differences of physical structure, especially in respect of the maternal functions, and also in the fact that, historically, woman has always been dependent upon man, who has established his control by superior physical strength. The cases of Riley, Miller, and Bosley follow in this respect the Muller case. But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller case (p. 421) has continued "with diminishing intensity." In view of the great -- not to say revolutionary -- changes which have taken place since that utterance, in the contractual, political and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point. In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances. To do so would be to ignore all the implications to be drawn from the present day trend of legislation, as well as that of common thought and usage, by which woman is accorded emancipation from the old doctrine that she must be given special protection or be subjected to special restraint in her contractual and civil relationships.

This is the most equalitarian rhetoric one will find in a Supreme Court about with regard to women for almost fifty years. Yet historians, even feminist historians hostile to protective laws for women, give Sutherland no credit. Various historians have accused Sutherland of “male bias and corporate favoritism,” of being “disingenuous,” of making “a farce of women’s equality,” and so on. In short, perhaps relying on Sutherland’s reputation as a “conservative,” historians have simply assumed that Sutherland was insincere.

Yet, it wouldn’t have taken any of these historians much effort to discover that Sutherland was a longstanding women’s rights advocate. He introduced the Nineteenth Amendment into the Senate when he was a Senator for Utah, campaigned for the passage of that amendment, helped draft the Equal Rights Amendment, and was a friend and adviser of Alice Paul of the National Woman’s Party.

One obvious lesson from all this is not to anachronistically assign ideological positions to people based on current ideological alignments. Sutherland may have been “conservative” on economic issues, but in 1923 there was no strong correlation between one’s views on women’s rights (or civil rights and civil liberties more generally) and one’s views on economic policy. Indeed, mainstream views in Progressive legal circles regarding women's "place" would be considered downright reactionary these days.

But there is also a broader issue of making conclusory statements about a historical figure without actually doing any research about that figure. Sutherland’s views on sex equality were not the focus of any of the erring historians’ work, but if they were not going to bother looking into those views, why raise the issue to begin with?

For those interested in the topic of protective laws for women and the law, I devote a chapter of Rehabilitating Lochner to it.

16 comments:

may be true, this should be contrasted with "conservative legal circles" in the same time frame. "Progressive legal circles" continue to make progress, subject to "conservative legal circles" efforts to thwart such progress.

Also, Sutherland as a Senator was most likely more political, catering to his electorate which included women, than in his role on the Supreme Court with a lifetime appointment.

If you simply define "conservative" and "progressive" literally, than of course you are right. If you are considering "Progressives" and "conservatives" in their historical context, then you are not. Being "Progressive" in 1923 didn't mean that you favored equality for women, and indeed in meant that you likely favored "family wage" policies that favored men, night work laws that excluded women from many jobs, opposed public day care (because it purportedly encouraged men to send their wives to work instead of being home with their kids as they should be) and so on.

As for Sutherland, his association with Paul continued well beyond his Senatorial career, and I don't think his role re the ERA was publicized regardless. Like the historians I criticize, you are just making assumptions about Sutherland's motives because it fits your preexisting stereotypes. Do you have any actual EVIDENCE that Sutherland was not sincere?

It is difficult having any "actual EVIDENCE" (other than perhaps self-serving) whether Sutherland, you or I was/are sincere or not sincere. I recognize my preexisting stereotypes and I have a pretty good idea as to yours.

By the way, being "conservative" in 1923 meant what regarding equality for women?

Regarding Sutherland's continued post-Senate association with Alice Paul reminds me of "Some of my best friends are ...."

I'm waiting to hear from feminist historians (unnamed) you criticize, hoping they are not stuck home with the kids or reluctant to respond.

"Some of my best friends are" is used when there is evidence that someone is prejudiced. We have no evidence that Sutherland was hostile to women's rights, and much evidence to the contrary. (Brandeis, by contrast, was a late and reluctant supporter of women's suffrage).

We call Justices from the 1920s "conservatives" based essentially on whether they (a) were part of the Brandeis/Stone/Holmes bloc on the Court; and (b) whether they later thought much of the New Deal to be unconstitutional. We similarly call other jurists "conservatives" based on the same criteria. The answer, I think, is that there is no known correlation between whether one approved of Brandeis's or Holmes's jurisprudence, or whether one thought the New Deal to be constitutional, and one's views of women's rights in general. We do know that leading Progressive jurists and justices--Brandeis, Holmes, Frankfurter, Florence Kelley--were against women having equal legal rights in the workplace, and were appalled when Justices like Sutherland, or the Justices of the Illinois S.C. in 1895, suggested that women should have equal legal rights.

Well, there's Joan Huber, Toward a Sociotechnological Theory of the Women's Movement, 23 Social Problems 371, 378 (1976), a special issue of the journal devoted to "Feminist Perspectives: The Sociological Challenge", where these lines appears:

"The result of the 1908 decision was a spate of legislation between 1909 and 1917, a peak year when the court passed almost all the labor legislation that came before it. A conservative trend followed, peaking in 1923 when Justice Sutherland held that the 19th (voting) Amendment established sex equality, hence special legislation for women was unconstitutional. Labor leaders deplored the decision."

I haven't tracked down Dean's cite as yet but I did download Joan G. Zimmerman's "The Jurisprudence of Equality: The Women's Minimum Wage, the First Equal Rights Amendment, and Adkins v. Children's Hospital, 1905-1923," Vol. 78, No. 1 (June, 1991), pp.188-225, The Journal of American History.

By the way, Adkins is not specifically referenced in the post or prior comments as the "case in point."

I'll be checking Zimmerman's article as well as rereading the thoughts of the late Thomas Reed Powell on Sutherland in Powell's "Vagaries and Varieties in Constitutional Interpretation," Columbia Univ. Press, 1956.

PS If you are looking for more sympathetic portrayals of Sutherland's views in Adkins, you can try Daniel P. Bryden, Brandeis’s Facts, 1 Const. Comment. 281(1994), Hadley Arkes, The Return of George Sutherland (1994), and David Mayer, Liberty of Contract (2011). I don't recall offhand if Arkes or Bryden points out Sutherland's history of favoring equality for women, but I know historian Mayer does.

Zimmerman's article includes evidence of Sutherland's insincerity as well as that of Alice Paul. Here's a quote:

"Since Sutherland was not only the author of the controversial Supreme Court majority opinion in the Adkins case but also an ally of Alice Paul's from the suffrage campaign, his views on women and industrial legislation invite closer scrutiny. When he lost his bid for reelection to the Senate in 1916, Sutherland blamed women voters." (page 219)

Sutherland was appointed by Pres. Harding to the Supreme Court in September of 1922. His activities prior thereto suggest that perhaps a recusal would have been appropriate in Adkins.

And the post here ignores the existence and role of Florence Kelley in the pre-Adkins battle. Her role was heroic in women's rights.

I don't know if David questions Zimmerman's article, assuming he read it, or if it is referenced in his book, which I haven't read. Perhaps the book is the start of a "Rehabilitating ..." series, to be followed up with "Rehabilitating the Harding Administration."

This Blog being a history blog, I would have thought David would have been grateful that a viewer (moi) pointed out the failure to identify the Adkins case by name in his post, and included an update in the post rather than a feeble attempt to justify his failure with his comment above.

But lady historians out there, I hope you're not intimidated. Let's hear from you. Are are you giving David a free pass?

Disagree. I formed a strong impression in my research that Kelley was only interested in women's rights to the extent that they advanced her socialist views. I ran this by a historian who is writing a book about protective laws for women, and she agrees with my assessment. Ch. 4 of my book has some quotes from Kelley that would lead any reasonable observer to question her feminist credentials (she opposed publicly subsidized day care, she routinely lumped women and children together, etc.)

Can you explain how what you wrote based on Zimmerman's constitutes "evidence" that Sutherland was insincere in Adkins?

And your evidence that an unnamed female historian agrees with you constitutes evidence? As for your reasonable person standard with quotes, indeed you may be cherry picking. Like beauty - and ugliness - sincerity is in the eye of the beholder. Zimmerman paints a picture of Sutherland "that would lead any reasonable observer" to believe he was insincere in his dealings with Alice Paul before his appointment by the leader of the administration that gave us the Teapot Dome scandal.

Take a look at the article by Kelley and Elsie Hill "Shall Women Be Equal Before the Law?" in The Nation, April 12, 1922, the year before Adkins, for Kelley's views.

No, I said I found evidence myself, and, not being a Kelley scholar, I simply got confirmation from a Kelley scholar.

I set it forth in my book: "Kelley has sometimes been described as a 'social justice feminist,' which implies that she saw her activist mission in significant part as challenging gender-based hierarchies. In fact, Kelley saw women’s labor issues primarily as a means of promoting socialist goals." [For Kelley's devotion to socialism, see the work of Kathryn Kish Sklar.]

Kelley, in fact, sounded much like male Justices denounced today as reactionary: "so long as men cannot be mothers, so long legislation adequate for them can never be adequate for wage-earning women; and the cry Equality, Equality, where Nature has created inequality, is as stupid and as deadly as the cry Peace, Peace where there is no Peace."Kelley wrote that providing a cash benefit to employed new mothers would amount to “saying to the wage-earning husband: Send your wife in to a mill, factory, or sweatshop, and the public … will send you a present for your next baby.” Moreover, such a benefit would serve as a “bribe to increased immigration of the kind of men who make their wives and children work.” She also opposed, despite her socialism, government provision of health care to working mothers, so as to discourage them from working. She praised a minimum wage law for protecting men from competition from women. And, as noted, she consistently conflated women and children. She also happily allied with unions explicitly devoted to excluding women from the labor force.

This is what I mean by "evidence." Instead of just assuming Kelley was a feminist (beyond her personal life, which was indeed trailblazing) because she was on the Left, we can look at what she actually said and did. And the reverse holds for Sutherland.

But you can just read chapter 4 of my book, all the info above is there.

In addition to not being a Kelley scholar, obviously you are not a fan. I continue to await comments from feminist historians: where are you hiding?

With regard to Sutherland, here's some of what Prof. Powell had to say in his "Vagaries and Varieties in Constitutional Interpretation" (pp. 39-40):

"The Lochner case was later overruled by the Bunting case without being mentioned at its own funeral. Yet in the Adkins case, which condemned an act of Congress indicating a floor below which factory wages for women workers might not go, Mr. Justice Sutherland said that principles stated in the Lochner opinion 'have never been disapproved.' This was true enough at the time, if all it meant is that liberty of contract may claim constitutional protection and sometimes get it. If it meant more than that, it is open to serious question. Also open to question is Mr. Justice Sutherland's venture into judicial history when he says:

'This Court, by an unbroken line of decisions from Chief Justice Marshall to the present day, has steadily adhered to the rule that every possible presumption is in favor of the validity of an act of Congress until overcome beyond rational doubt. But if by clear and indubitable demonstration a statute be opposed to the Constitution we have no choice but to say so.'

"His ensuing demonstration was clear enough, but far from indubitable. He dismisses declarations favorable to minimum wage legislation by saying 'they reflect no legitimate light upon the question of its validity, and that is what we are called upon to decide,' adding that 'The elucidation of that question cannot be aided by counting heads.' It is judicial heads that count. Five Supreme Court heads of the particular moment voted the condemnation, although thirty-five of the forty-five judges who sat in all courts on the question voted for validity. It was Selden in his Table-Talk who said: 'They talk (but blasphemously enough) that the Holy Ghost is President of their General Councils, when the Truth is, the Odd Man is still the Holy Ghost.'"

What every constitutional scholar needs is a sense of humor. Alas, ....

I've appreciated this robust discussion very much, but I'm afraid that a subsequent comment crossed the line from an engagement with the ideas to unwarranted personal criticism. So, with apologies to a valued commenter, I've deleted the comment, and will close out this discussion.

My 2 cents on some of this: I agree with David that it isn't helpful to "anachronistically assign ideological positions to people based on current ideological alignments." Current political alignments do not map well on progressive era jurisprudence. After all, Holmes, a liberal, authored Buck v. Bell, and that case was the highlight of the term for him. Women's rights, especially labor rights, evoked conflicting positions among women's rights activists at the time. There was no one true feminist position. BTW, on this topic, Alice Kessler-Harris, Out to Work, is dated, but I still find it so valuable on women's labor history during that period.

I will say that David's original post was a bit difficult to engage b/c he made specific criticism of scholars, without telling us who he is thinking of. This may simply be an effort to be polite. This is, after all, a rather polite blog. I assume that the particulars can be easily found in his work. (And David: I'm not suggesting that you should name names. We're looking forward to more from you on other topics.)

As to the question raised by Shag about why others weren't weighing in in the comments -- sometimes people are simply too busy! Sometimes their way of engaging David's points might be to do it in their work. We have a devoted, but rather quiet, readership. Which is why we value our commenters so much, and why I regret having to end this conversation.